Articles Posted in Workplace Accidents

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Here is a rough summary of your New York slip-or-trip-and-fall lawyer’s tasks:

  1. Gathering Evidence

The first step in presenting a trip or slip and fall case starts long before trial.  It is to gather evidence, including photographs and videos of the accident scene and the specific hazard that caused the fall, witness statements, medical records, and other relevant documents.  Measurements of the hazard and the area should also be taken. In slip cases, the weather reports for the area may be crucial.

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Photo above: Me putting a  farmworker injury case into storage.

I am one of the only personal injury lawyers in Upstate New York (Syracuse, Rochester, Buffalo) who speaks fluent Spanish. I’m also married to a Guatemalan and move comfortably in the Latino community here. It’s no wonder, then, that over my 30 years or so of representing personal injury victims in Upstate, many of my clients have been “undocumented” Mexicans and Central Americans.

If you are a personal injury lawyer seeking to represent an undocumented Spanish speaking immigrant, here is what you need to know:

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It’s been quite a while since this Central New York Injury Law blogger has posted anything.  In fact, almost a year.  It was a busy year and blogging gave way to serving our clients’ pressing needs, always our number 1 priority.  But to quote Arnold Schwarzenegger (sort of), “we’re back!”  And with lots of news:

News Item Number 1:Michaels & Smolak” is no longer (sigh).  Jan Smolak, one of our four lawyers, left the firm to go join his lawyer-wife’s practice, Perotto Law, in Rochester, New York. We wish Jan luck!

News Item Number 2:  The other three “Michaels & Smolak” lawyers, Lee Michaels, Mike Bersani, and Dave Kalabanka. have remained right here in the same office in Auburn New York, but  are now operating under the name “Michaels Bersani Kalabanka, P.C.”.  Yeah, I know, that’s quite a mouthful, which is why we prefer to call ourselves “MBK Law”.  Our new website is MBK-LAW.com

Most folks know that when you are hurt on the job you can’t sue your employer.  Instead, you get worker’s compensation, which means the employer’s worker’s compensation insurance (“comp”) pays your medical bills and some of your lost income (the most they pay is about 2/3 of your lost income, but that’s only if you are 100% disabled).

You can’t sue your employer, or your co-workers employed by the same employer, but you can sue others who negligently caused, even partially, your on-the-job injuries. When you sue these non-employer others, that lawsuit is called a “third-party action”.

For example, say you are working on a Syracuse construction site for a plumbing subcontractor.  One of the employees of an electrical subcontractor is working from a ladder and drops a power tool on your head.  Your employer’s insurer pays your worker’s compensation benefits, but you can also sue the electrical subcontractor in a “third-party action”.

I shot the photo above from my bathroom window in Geneva, New York.  The video below shows the same scene but in vivid motion.  Watch it!

Why did I shoot this video?  Because I wanted to show my readers what a law-suit-waiting-to-happen looks like.

Like almost everyone else on Planet Earth, this Syracuse NY injury lawyer has been holed up at home, hunkering down against the pandemic.  My home is in Geneva, NY, which is a pretty nice place to be locked down.  People here are looking out for each other.  I’ve joined a group of corona virus fighters at a local church preparing cheap and even free meals for folks on the weekend.  Can you guess which one in the above photos is me?

My “real” job, though, is not on standstill.  In fact, my laptop keyboard is getting quite a workout:  I have been conducting online research, shooting out emails to adjusters and defense lawyers, preparing legal briefs, etc.  My cell phone has also been working overtime:  Insurance adjusters are still working (from home) so I have been trying to settle cases with them. I have also been catching up with clients on the status of their medical treatment.

The court system, however, is frozen solid, at least in the civil arena.  All motions, court filings, trials, etc. are suspended.  My calendar is just about empty.  And that does give me some extra time for reading and writing.

If you are like me, about 50% of your conscious life these days can be summed up in one word: corona-virus.  President Trump declared a national emergency yesterday.  We are urged to engage in “social distancing”, to avoid crowds, wash our hands thoroughly and frequently, and to refrain from touching our face.

What is Michaels Bersani Kalabanka doing to keep its staff, clients and others safe?  Here’s our current policy, which is still evolving to meet new developments:

Staying informed

If you walk into a Syracuse, New York pub on a Friday at 5:20,  and you happen upon a group of personal injury lawyers having an end-of-the-week beer, you might hear them rant about how unfair some New York personal injury laws are.  For example, unlike most States, New York does not allow the immediate family of a wrongful death victim to receive compensation for their grief and heartache at losing their loved one, even if that loved one is a child.  A millionaire drunk driver ran over your thee year old?  Tough luck, mom.  Was he supporting you economically?  Of course not, so you don’t get economic loss recovery.  So what if he was the most important thing to you in the whole world, and your life has been destroyed by losing him.  No compensation for your grief!  You might settle that case for a few thousand dollars, but not the millions it is really worth. Very unfair!

But New York personal injury law has its upside, too.  For example, unlike any other state, New York has something called “the scaffold law”, also known as Labor Law section 240.  That law allows construction workers and others who fall from heights – and  in some cases upon whom objects fall — to get full compensation for their injuries.  This compensation goes far beyond mere workers’ compensation.  The injured fallen worker can sue the general contractor and owner of the construction project for real money, including pain and suffering compensation.  Usually, the case will involve a ladder or scaffold that failed, but can also involve a worker falling because he was not provided with adequate fall protection, such as a harness or barrier.

But here’s the real kicker, and here’s why New York construction accident lawyers like me just love Labor Law section 240:  The injured worker gets fully compensated even if the fall from the height was partially his own fault, as long as Labor Law section 240 was violated.  And Labor Law section 240 is violated almost anytime a construction worker falls from a height, whether because the ladder or scaffold or harness failed, or because such safety devices were not provided, or because proper barriers were not in place.

I was sad to learn of the accidental death of a Seneca Meadows employee last Saturday. Seneca Meadows is a local (Seneca Falls and Waterloo, Seneca County, NY) landfill which (controversially) takes in tons of trash from all over the Northeast.  It is a huge operation involving many machines and vehicles.  This is not the first fatality there.

The victim, employed by Seneca Meadows, was operating a “tipper machine” when he was struck by a tractor trailer being backed up to unload garbage onto the tipper machine. The driver of the tractor trailer was not employed by Seneca Meadows, but rather by another company, which is good news for the victim’s family.

Why is that good news?  Because the family — unlike the families of most on-the-job wrongful death victims — has a good chance of getting fairly compensated. Most victims of on-the-job injuries are not fairly compensated because their only resort is workers’ compensation, which offers only an embarrassingly small sum of money for the loss of a father, husband, and breadwinner.

Look at this kid! Fernando Vanegas, 19 years old. Same age as my son Sebastian, who just went off to college.  Full of life, of hopes, of dreams, just like Sebastian. Fernando came to Queens, New York from Ecuador only a year ago to reunite with his parents whom he had not seen in 15 years. As an immigrant with almost no English, the best job he could land was in the construction industry. Dangerous work. He would come home at night and tell his parents how frightening his work was; close calls involving retaining walls almost falling on him. Then, last Thursday, he did not come home. A retaining wall collapsed, burying him and two other workers in a heap of cinder blocks. He died.

He should not have died. The warning signs were all there.  The site should have been shut down. Several safety violations had recently been reported, including that the retaining wall was not stable.  The City failed to shut down the work.

Fernando was a canary in a coal mine. Now of course the site is shut down.  Now of course, at least for a while, the City will err on the side of caution, and shut down similar sites.  Shame on his employer, and shame on the City of New York inspectors, for allowing him to die under such conditions, without heeding such obvious warning signs of danger.

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